Before the COVID-19 pandemic, one of the most widely discussed health care topics in Congress was the cost of prescription drugs. Federal policymakers have picked up the conversation again, held several hearings and introduced legislation to address what many see as unsustainable drug costs. So, what is being discussed, and could a vote in the House or Senate be feasible in the future? This was a bipartisan policy issue prior to the pandemic, that could encourage members across the aisle to work together.
Several congressional committees—House Education and Labor, House Energy and Commerce Subcommittee on Health, Senate Health Education Labor and Pensions, Senate Judiciary Subcommittee on Competition Policy—have held hearings in which myriad academic, consumer advocacy and health care experts answer grueling questions regarding current prescription drug pricing and what is needed to reform the system. Topics included anti-competitiveness in health care, the role of the federal government in negotiating lower prices, and antitrust issues, including patent settlements.
Solutions Up for Debate
While federal policymakers may agree that prescription drug prices are too high and that something must be done, how to address the affordability issue is very much up for debate. One piece of introduced legislation, HR 3, the Elijah E. Cummings Lower Drug Costs Now Act, would establish several new programs and pricing requirements for prescription drugs. The bill would require the Department of Health and Human Services to negotiate maximum prices paid for prescription drugs that are among either the 125 drugs that account for the greatest amount of national spending, or the 125 drugs accounting for the highest Medicare spending. The bill would require that 25 of the drugs be negotiated by 2024 and 50 of them thereafter for newly approved drugs. The negotiated prices would be offered under Medicare and private health insurance unless the insurer opts out. The bill calls for several other changes, including to Medicare prescription drug coverage and drug manufacturers’ current practices.
HR 3 is being led by Democrats and faces opposition from House and Senate Republicans. To date, the bill has been introduced, and House Energy and Commerce Committee Chair Frank Pallone (D-N.J.) announced that it will be marked up and sent to the floor for a vote but has also discussed its potential inclusion in one of the president’s future infrastructure proposals. The bill being in flux also could be due to hesitation among several Democrats, who have concerns with its proposed Medicare changes. Republicans offered that the solution is to cap the amount seniors in Medicare pay each year for prescription drugs and to stop some anti-competitive practices. Republicans also introduced HR 19, the Lower Costs, More Cures Act of 2021, proposing reforms to Medicare and Medicaid and the programs’ roles in prescription drug pricing.
Revisiting Earlier Work
Prior to the pandemic, Senator Chuck Grassley (R-Iowa), who was then chair of the Senate Finance Committee, introduced bipartisan drug pricing legislation. The pandemic halted action on the bill and other health care reform policy. In recent months, Grassley has proposed to meet with House Democrats concerned with HR 3 and to explore working with them on a package like his in the 116th session. Senate Finance Chair Senator Ron Wyden (D-Ore.) has indicated he wants to build on the previous prescription drug package he negotiated with Grassley when he was the Senate Finance ranking member, but he’s also said he wants to include language empowering the government to negotiate with prescription drugmakers.
In the past 18 months, drug companies have pivoted to a more positive narrative with their rapid movement in developing COVID-19 treatments and vaccines and in supporting health care systems. Now, as Congress starts to look at the gaps in the health care system starkly highlighted by the pandemic, drug companies and manufacturers may find requests for their presence before congressional committees increasing. How and when Congress chooses to move on legislation, and if members ultimately can work together, hangs in the balance.
Haley Nicholson is senior legislative director, Health and Human Services, in NCSL’s State-Federal Affairs Program.